No matter who wins, we face the prospect of bitterly divided government, savage partisanship in Congress, and increasing executive desperation. Even if Republicans win the Senate and retain the House, they will not have a filibuster-proof majority in the Senate; even if Obama holds on to the White House, he will face filibusters in the Senate and outright defiance in the House. A Congress that cannot deal with the tiny student-debt problem in orderly fashion is unlikely to be able to tackle big problems at all.

The response to legislative paralysis is, of course, executive aggrandizement. Charlie Savage of The New York Timeslaid out recently the turn by the Obama administration to executive authority as its means of governing the country. It’s entirely predictable; legislative fecklessness has led to presidential power-grabbing for more than a century. And if Mitt Romney becomes president, he is already poised to follow the trend—witness his announcement that he will simply suspend the Affordable Care Act by executive order, a claim of prerogative that would, I suspect, make even John Yoo wince.

It’s common to blame the Constitution’s structure for this recurring political train wreck. The president and the members of Congress are both chosen by voters, but there is no necessary connection between them. Local people can decide that they like both Congressman Mossback and President Jetson; nothing in the political structure forces them to note that their choices will devote the next two years to destroying the other rather than to governing. Mossback can block legislation and blame Jetson for not passing it; Jetson can flex executive muscles, knowing that a paralyzed Congress will be unable to pass a statute blocking him. Two, or four, years later, the voters will still have no idea who is to blame.

The framers did not foresee the rise of a two-party system. As a result, the Constitution (unlike most 20th-century constitutions) makes no provisions for party participation in government or party accountability in policy. But their vision of disinterested, dispassionate demigods soberly debating the public good barely survived the Washington administration; the founding generation itself descended into partisan warfare that compares in vitriol with what we face today. No amount of wishing will make party polarization go away—as Senator Richard Lugar learned this week. And amending the Constitution to tie parties more closely to responsibility would be a chancy and dangerous process.

But the founding generation also found a work-around for this problem. Between 1800 and 1824, the national parties chose their presidential nominee by vote of a congressional nominating caucus. Each member of Congress had one vote in his party’s caucus, and the winner was the standard-bearer. The result was a closer identification between parties on Capitol Hill and leaders in the White House and greater ability to debate national issues during election season with the understanding that the winners would be expected to work together.

The lore of the political-party convention is so ingrained in the American mind by this point that it’s easy to imagine that the Federalist Party gathered in Philadelphia with brass bands to renominate John Adams in 1800, while the Jeffersonian Republicans partied in Richmond wearing Styrofoam WIN WITH TOM hats.

But the presidential nomination convention came into existence only in 1831, when the Anti-Masonic Party, which had virtually no congressional caucus, held a membership convention in Baltimore to unveil the doomed Wirt-Ellmaker ticket. The caucus itself, however, had died in 1824—an election cycle that produced the modern problem of divided government for the first time. The caucus died of crass political calculation. Everyone knew that the Democratic Republican caucus would be dominated by Treasury Secretary William H. Crawford, who had just been disabled by a stroke. By a bizarre coincidence, the other candidates suddenly discovered that the caucus system was undemocratic. John Quincy Adams said he would refuse the nomination because the system was “adverse to the spirit of the Constitution and tending to corruption.” Also, he could not win it.

The election was fought by five candidates—Crawford, Adams, Andrew Jackson, Henry Clay, and John C. Calhoun. When no candidate got an electoral majority, the House picked Adams, even though he finished behind Jackson in the popular vote. For the next four years, as historian Edward Pessen writes, congressional supporters of Jackson “had a marvelous pretext for mounting what was to be four years of incessant opposition to the Adams administration and all its works.” In 1828, Jackson drove Adams from office in an election that historian Lynn Hudson Parsons has called “the birth of modern politics.” Jackson was the first “modern” president in another way: as a representative of “the people,” he insisted that he could act on his own authority even absent constitutional authorization.

What if the members of today’s Congress had to pick their party’s nominee? The caucuses would, in effect, have to find candidates they respected, then step before the country and say, “We can work with this candidate, and here’s what we will do together.” Voters would be on notice that each party had a plan of government if it gained power. Presidents would arrive in office with some skill in dealing with Congress, and some commitment to doing so. The pattern of congressional fecklessness and executive usurpation might be broken.

At this point, I suspect, the greatest threat to Obama’s re-election is not fear by his enemies of what he will do but despair by his supporters that he will ever be able to do anything. A feeling may grow among swing voters that it is better to have a president who will govern badly than one who may not be able to govern at all. Of course, voters who choose Romney on this basis have no real guarantee he will do any better. He was certainly not the first choice of Republicans on the Hill, particularly of the Tea Party extremists. Even if he becomes president, a year from now the level of paralysis may be almost the same.

Much of what the foes of caucus nomination said in 1824 is true. It is undemocratic. It does open the way for unseemly insider dealing. It would of course be better to have a system in which candidates are selected by the people after a democratic nomination process, the two candidates conduct a fair, issue-oriented campaign, and members of Congress arrive in Washington to work together for the common good.

But as Bob and Ray used to say, “I bet you believe in the Tooth Fairy too.” The current state of our politics is so wretched that a sordid drama of congressional intrigue would seem by comparison like an assembly of the gods. Maybe it’s time to rethink our approach. The caucus system resulted in the election of three good presidents, and in a political climate that came to be known as “the era of good feeling.” We who live in “the era of I Hate You And Everybody Who Looks Like You” ought at least to take another look at their solution.

Did Chief Justice Roberts change his mind about the Affordable Care Act at the last minute? Whatever happened, it's going to be a long time before we find out.

About the Author

Garrett Epps is Professor of Law at the University of Baltimore. He covers the Supreme Court for theatlantic.com. His book, American Epic: Reading the US Constitution was published in August 2013 by Oxford University Press.